### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 25, 2000 Session
TERESA P. CONSTANTINO AND 

### LILA MAE WILLIAMS v. CHARLIE W.

WILLIAMS AND 

### GLENDA E. WILLIAMS.
An Appeal as of Right from the Chancery Court for Weakley County

No. 15095 W. Michael Maloan, Chancellor

No. W1999-00229-COA-R3-CV - Filed January 30, 2001

This case involves the interpretation of a deed. The granting clause of thedeed created a life estate in the grantee, th

e ex-husband of the

grantor, with

a remainder to the three children of the grantee
an d grantor. Howe ver, the habendum clause retained a life estate in the grantor. The trial court decided that the grantor did not retain a life estate beca use any am

biguity in the deed should be construed strictly against the grantor. The g rantor appealed to this Court. We reverse. Tenn.R.App.P. 3; Judgment of the Chancery Court Reversed and Remanded

H OLLY K IRBY L ILLARD , J., deliver ed the opi nion of the

court, in w

hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.

H unter B. Whi tesel l and J ohn Be ll Wh itese ll, Fu lton , Kent ucky, fo r the a ppell ant, Li la Ma e Williams.

Pamela S. Jones, Dresden, Tennessee, for the appellees, Charlie W. Williams and Glenda E. Williams.
OPINION

This case involves the interpretation of a deed transferring real pro pert y. The grantor, L ila Mae Williams (“Lila

”) and her husba

nd, Harold Williams

(“Harold”), were married on February 22, 1945. During their marriage, they had three children, Charles Williams, Winston W ill iams, and Teresa Constantino. On October 25, 1972, Lila and Harold were divorced. The marital property to be divided under the divorce decree inclu ded sev eral tra cts of l and loc ate d in Wea kle y Cou nty, Tennessee. The divorce decree awarded this real property to Lila.-2-

In a deed dated December

19, 1975, Lila c

onveyed the

Weakley Coun

ty property

to Harold for life. The g

ranting, or pre

mises, clause of th

e deed states:
I, LILA WI

LLIAMS, an unmarri

ed pers on, do hereby sell, transfer, andconvey to my former husband, H AR OLD WILL

IAMS, the herei nafter

tr acts of land, for and during his natural life and the remainder

interest therein I he

reby sell, t

ransfer and co

nvey, to my three children, CHARLIE W. WILL IAMS, WINS TON H

. WILLIA MS, and TERESA P. CONSTANTINO.

The deed also con

tains a habendum c

lause that states:

TO HAVE AND TO HOLD the premises aforesaid unt o the sa id, LILA WILLIA

MS, for and during her n

atural life, with

the remainder in such tracts of

land t o, CHA RLIE W. WILLIAMS, WI NSTON H. WILLI AMS, and TERESA P. CONS TANTINO, their heirs and assigns forever.

Harold Williams died in 1983. Following his death, daugh ter Teresa Constantino (“Teresa”) agreed to convey he

r interest in the We

akley County

property to her brother, Charle

s W. Williams (“Charlie”), for $5,000. Teresa executed a quitclaim deed on July 31, 1989, c onveying h

er interest to Charlie, and the deed was recorded several ye ars later on March 18, 1997. The other son, Winston H. Willi ams, died intestate in 1995, leaving his widow, Glenda E. Williams (“Glenda”), and fou r children. On March27, 1997, Charlie and Glenda executed and recorded a warranty deed convey ing the Weakley County property to themselves as tenants in common. The action that is the subject of this appeal began when Teresa Constantino filed a lawsuit in the Weakley

County Chancery Court on April 29, 1997, seeking to set a side the quitclaim deed conveying

her interest to Charlie, as well as the warranty deed creating

a tenancy in common as to Charlie and Glenda. Teresa na med Charlie Williams and Glenda Williams as defendants in the lawsuit. Teresa alleged in the Complaint that Charlie never paid her the $5,000 consideration for her one-third interest. Defendants Charlie Williams and GlendaWilliams denied this allegation, asserting that Charlie had paid Teresa the $5,000 consideration in cash.
On October 7, 1998, Lila Williams (now Lila Williams Norris) filed a motion to intervene in the su it. In her motion to interv ene, Lila ass

erted that she ha

d a life estate int

erest in the prope

rty under the December 1975 deed. On October 14, 199 8, the trial court g ranted her motion

to intervene. On October 19, Lila petitioned the trial court to “determine jud

icially that she does have
a life estate in s aid pro pert y. ” Defendants Charlie Williams and Glenda Williams responded that Lila did not retain a lif

e estate becaus

e the deed’s gr

anting clause

conveyed a fee

simple interest to he r thr ee ch ild ren u pon Haro ld’ s de ath , an d th at t hat int eres t co uld not be d imi nis hed by t h e habendum clause.-3-

After an evidentiary hearing, the trial court issued an Order on June 28, 1999. The trial court first found that Plaintiff

Teresa Consta

ntino had not carried her burden of proving that Defendant Charlie Williams failed to pay the consideration for Teresa’s interest in the property . The trial court then found that the dee

d from Lila Willia

ms to her ex-husband and their three children created a life est ate onl y in H arol d Wi lli ams , an d th at Li la d id n ot h old a li fe es tat e in ter est in t he p rop ert y: Regardingthe claim of Intervenor Lila Williams and whether she retains a life estate in the real property evidenced by Warranty Deed dated December 19, 1975 . . . the court finds that the language in the deed is to be construed more strictly against the grantor Lila Williams. The court further finds that the said Warranty Deed created
a life estate only in Harold Williams, and that Lila W illiams di d not retain any interest in the Warranty deed dated December 19, 1975 . . . .

The trial court

did not set forth an

y findings o

f fact supporting

the conclusion tha

t Lila did not re

tain a life estate. From this order, Lila Williams now appeals.

On appeal, Lila argues that the trial judge erred in finding that she did notretain a life est ate in the property. It must be noted that the record in this case

includes no transcript or statement of the evidence. The Defendant/Appellees Charlie Williams and Glenda Williams argue that the trial court’s decision was a finding of fact. If so, then our review of t he trial court’s decision is quite limited. “In the absence of a transcript, we must assume that ‘the record, had it been preserved, would have contained sufficient evidence to supp or t the trial court’s factual findings.’” Word v. Word , 937 S.W.2d 931, 932 (T enn Ct. App . 1996) (qu oting Sherrod v. Wix , 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992)). If, however, the trial court’s ruling was ba sed on its i nterpretation of the deed, this would present

a question of law. See City of Memphis v. Waite , 102 Tenn. 274, 277, 52 S.W. 161, 162 (Tenn. 189 9); Brown v. Brown , 320 S.W.2d 721 , 728 (Tenn. Ct. App. 1 958). In reviewing a question of law, the scope of rev

iew on appeal is de novo , with no presu mp tion of correctness

in the trial court’s decision. See State v. Levando wski , 955 S.W. 2d 603, 604 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

In their brief on ap

peal, Defendan

ts Charlie Williams an

d Glenda Williams ar

gue th at t he trial judge found that Lila’s name was in the habendum clause by

mistake. However

, the Defendants
canpoint to nothing in th

e record that be

ars out this

assertion. As noted above, there is no transcript
or statement of the evidence. In addition, the trial court’s order indicates that the t rial court’s conclusion was based on interpretation of the language used in the deed, since thetrial court alluded to the principle that

“the languag

e inthe deed is to be construed more strictly against the grantor. .

. .” Under the circumstances, w e mu st conclude that th e trial court’s ho

lding was based o

n its interpretationof the language in the deed. This is a question of law tha t is revie wed de novo on appeal. See City of Memphis v. Waite , 525 S.W. at 162; Brown , 320 S.W.2d at 728 (interpretation of a d eed is a que stion of law); State v. Levandowski , 955 S.W.2d at 604 (review on appeal of a question of law is de novo with no presumption of correctness).-4-

It is well-settled in T

ennessee that, in

interpreting a

deed, a court sho

ulduse its best effort to give effect to the intentions of the grantor as evidenced by the entire deed. See Hall v. Hall, 604 S.W.2d 851, 854 (Tenn. 1980) (quoting Co llins v. Smithson , 585 S.W.2d 598 (Tenn. 1979)); Bennett v. Langham , 383 S.W. 2d 16, 18 (T enn. 1964); Moore v. Stanfill , 313 S.W.2d 486, 490 (Tenn. Ct. App. 1957). The formalistic, common law practice of dividingdeeds into separa te parts for analysis is no longer followed. Lockett v. Thomas , 165 S.W.2d 375, 376 (Tenn. 1942). “[I ]n th e construction of deeds the intention of the grantor is ascertained by c onsideration of the entire instrumentof conveyance and no preference is given the premises over habendum, and

. . . the estate granted in the premises of the deed may be enla

rged or lessen

ed in the habendum.” Id. (citing Pryor v. Richardson , 162 Tenn. 346, 37 S.W.2d 114 (Tenn. 1931)).

In Bennett , the Tennessee Supreme Court stated that the common l aw rule of deed interpretation, which “places precedence upon the premises over the habendum clause,” should be usedonly as a “last res ort” if the lang uage of the dee

d is “so confused a

nd contradictory

in its wording . . . [that it sheds] no light upon the intent of the grantor . . . .” Bennett , 383 S.W.2d at 20. Further, the Court stated tha t “[i]t should not be assumed that the grantor intended to contradict himself and the court should lean to a constru ction w hich avoids such a contradiction.” Id. at 19 (discussing Quarles v. Arthur , 231 S.W.2d 589, 590 (Tenn. Ct. App. 1950)). In Bennett , the grantor conveyed a life estat e to his wif e in the grant ing c laus e, but later used language describing a fee simple estate in himself a

nd his wif

e as ten ants by the entirety. Id. at 18. The Court applied the
common law rule giving precedence to the premises clause because the la nguage in t

he different parts of the deed conflicted, and the Court believed that the language in the premises clause was more easily understood by the g rantor, who was not educated in the law. Id. at 20. This common law rule has been applied in other cases in which the

habendum clause

could not be reconcile

d with the granting clause. See, e.g., Moore v. Stan fill, 313 S.W.2d 486, 487-88 (Tenn. Ct. App. 1957) (involving a deed where the granting clause convey ed a fee simpl e ti tle and the haben dum clause included conditions that, if they occurred, would convert the interest into a life estate); Quarles v. Arthur , 231 S.W. 2d 589, 590 (Tenn. Ct. A pp. 1950) (involvin

g a deed where

the granting c

lause conveyed a life estate and the habendum a fee simple title).
Therefore, in this case, the December 19, 1975 deed should be construed by considering the entire instrument, and “l

eaning” towar

d a constructi

on that avo ids assuming that th e grantor, L

ila Williams, contradicted herself. Bennett , 383 S.W.2d a t 19. Th e common law rule placing precedence on the premises clause should be utilized “as a last resort.” Id. at 20.

In the 1975 deed at issue

in this appeal, the

granting cla

useand the habendum clause are not irreconcilable. The granting c lause convey

s a life estate

to Harold Williams; the habendum clause retains a separate life estate in Lila Williams. The habendum clause does not change the na ture of Harold Williams’ life estate, butmerely describes another, simultan

eous life estate r

etained by L

ila Williams

. Unde r these circumsta nces, the remain

der interests of t

heir children wo

uld become possessory upon the deaths of both Harold and Lila.-5-

The grant of a life estate to Lila in the habendum clause may have been a mistake, as the Defendants

assert. However, there

is nothing in the re

cord before this

Court to support this assertion. From examination of the entiredeed, and leaning toward a construction that avoids assuming that the grantor, Lila Williams, contradicted herself, we hold that the December 19, 1975 deedmust be construedto retain a life estate in Lila Williams, in addition to granting a life estate to Harold Williams. Therefore, the decision of the trial court on this issue is reversed.

The decision of the trial court is reversed, and

the cause is remanded fo r further pro ceedings consistent with this Opinion. Costs are taxed agains t Ap pellees Charlie W. Williams and Glenda E. Williams, and their surety, for which execution may issue if necessa ry.

___________________________________ HOLLY KIRBY L

ILLARD, JUDGE